Delhi District Court
Col. (Retd) Ramphal Suhag vs Vinod Kripashankar Pathak on 9 April, 2015
IN THE COURT OF SH R.L. MEENA ADDL. DISTRICT JUDGE02:
SOUTHWEST DISTRICT: DWARKA COURTS:NEW DELHI
CS no. 314/12/14
Unique Identification No. 02405C0105222012
Col. (Retd) Ramphal Suhag ........ Plaintiff
VERSUS
Vinod Kripashankar Pathak ........ Respondent
09.04.2015
ORDER
1. By this order, I shall dispose of application under Order II Rule 2 and 3 of the Code of Civil Procedure, 1908 (CPC) filed by the defendant.
2. Brief facts of the present application are that plaintiff filed a suit for recovery of Rs. 15,00,000/ against the defendant. Plaintiff is stated to be the Managing Director of M/s Delta Guards Private Ltd who filed a previous suit bearing no. CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 1/8 2412/2011 for recovery of Rs. 20,08,000/ against the defendant before the Hon'ble High Court of Delhi which was withdrawn by the plaintiff on 28.03.2012 due to the reason best known to him. However, he had sought the liberty from the Hon'ble High Court to file the suit for recovery of money against the defendant on the same cause of action on individual basis, being the director of the company. It is further stated that now plaintiff has again filed present suit on similar cause of action. It is further stated that in view of the aforesaid facts and circumstances, present suit is barred under Order II Rule 2 & 3 CPC read with Section 11 CPC. It is further stated that present suit has been filed by the plaintiff against the defendant just to harass him and sole motive of plaintiff is to extort money from the defendant by hook and crook. It is prayed that present suit is liable to be dismissed with heavy cost.
3. Plaintiff filed reply of the present application wherein it is contended that present application is nothing but abuse of CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 2/8 process of law on the part of plaintiff. It is further contended by the plaintiff that he has never filed any civil suit on the same cause of action before Hon'ble High Court of Delhi or any other court against the present defendant and the submissions made in the present application are totally false and wrong. It is further stated that the order dated 28th March 2012 of Hon'ble High Court of Delhi was passed in suit titled "M/s Delta Guards Private Ltd Vs. V. Kumar and another" and not in any suit titled as "Col. (retd) Ramphal Suhag Vs. Vinod Kripashankar Pathak" which is the present suit. It is further stated that in the eye of law a body corporate i.e "company" is a separate legal entity and the company i.e M/s Delta Guards Private Ltd is a separate legal entity which had filed suit against the present defendant before Hon'ble High Court of Delhi however same was withdrawn by the company with liberty to file the present suit against the defendant in the individual capacity of plaintiff for recovery of his legal dues from defendant. It is CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 3/8 further stated that Hon'ble High Court of Delhi had also specifically mentioned in the said order that Director will have an independent right to claim the said amount from the defendant. It is further stated that defendant is already trying to create the confusion before this court in order to avoid trial since the case of plaintiff is based upon the documentary evidence and defendant has no strength and lawful defence therewith. It is further stated that provision under Order II Rule 2 and 3 CPC read with Section 11 of CPC are not applicable upon the facts and circumstances of the present case, therefore, present application is liable to be dismissed.
4. I have heard arguments advanced at bar by Sh. Amit Minocha learned counsel for the plaintiff and Sh. S.K. Tomar learned counsel for defendant and perused the record carefully.
5. After having gone through the submissions of both the parties, I find that both the parties have interpreted the order CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 4/8 of Hon'ble High Court in their favour. Before dealing the contentions of both the parties, it is relevant to refer the relevant part of the order dated 28.03.2012 of Hon'ble High Court which reads as under: "I have heard learned counsel for the parties. So far the withdrawal of the present suit is concerned, it is within the discretion of the plaintiff to continue the suit or withdraw the same. It is only in exceptional circumstances, the withdrawal of the suit can be refused by the court. In any case, the liberty has not been sought by the plaintiff company but the plaintiff company in the present application is seeking liberty for the Director to file an independent suit to claim the said amount. No such averment has also been made by the plaintiff in the present application. In such circumstances, no liberty can be afforded to the plaintiff company as a Director will have an independent right to claim the said amount from the defendant and on filing of such a suit, the defendant will have every right to raise all legal objections available to oppose the same."
6. Bare perusal of the aforesaid order of Hon'ble High Court it is clear that plaintiff's company was not given liberty to file the fresh suit however, an independent right has been given to the Director (plaintiff) to claim the amount from the defendant and defendant has also been given opportunity to CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 5/8 raise all legal objections available with him.
7. In the aforesaid backdrop, now one question arise as to whether suit of the plaintiff is barred u/o II Rule 2 & 3 CPC R/W Section 11 of the CPC. For answering the aforesaid posed questions I rely upon law laid down in case titled 'Ayodhya Prashad Vs Chhedi Lal, AIR 2000 MP,184 wherein it is held that in order to attract the bar of Order II Rule 2, the earlier suit should be founded on the same cause of action on which the subsequent suit is based, and if in the earlier suit the plaintiff has omitted to sue in respect of or intentionally relinquished any portion of his claim, he will not subsequently be entitled to sue in respect of the portion of his claim so omitted or relinquished.
8. In the light of the aforesaid preposition of law, now it is to be examined by this court as to whether present suit is based upon the same cause of action or whether plaintiff has omitted any relief in the previous suit which is being claimed in the present suit. Before dealing the aforesaid CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 6/8 issues, it is worth to noticing here that previous suit was filed by M/s Delta Guards Private Ltd which was not decided on merit but same was withdrawn by the aforesaid company seeking liberty to file the same by present plaintiff in his individual capacity and liberty was granted by the Hon'ble High Court of Delhi vide order dated 28.03.2012. Now coming on the aforesaid posed question as to whether suit of the plaintiff is based upon the same cause of action or not. For answering the aforesaid question, I am of the considered view that it is a matter of trial as to whether alleged loan was given by the plaintiff in his individual capacity or same was given by plaintiff's company to the defendant. Now coming on the second posed question as to whether plaintiff has omitted any relief in the previous suit which is being claimed in the present suit. For answering the aforesaid question, I find that defendant has failed to explain as to what relief has been omitted in the previous suit which is being claimed in the present suit. With these observations, CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 7/8 I am of the considered view that present application is not maintainable at this stage, therefore, same is dismissed.
Pronounced in the open (R.L.Meena)
court on 09.04.2015 Addl. District Judge02/SouthWest,
Dwarka Courts Complex, New Delhi
CS no. 314/12/14 Col. (Retd) Rampal Suhag Vs. Vinod Kripashankar Pathak 8/8